Constitutional LawResearch Article

A Comment On Uttar Pradesh’s ‘Love Jihad‘ Law


Author: Alisha Sanga, third-year law student. Currently pursuing her B.A. LL.B.  (Hons.) degree from Rajiv Gandhi National University of Law, Punjab. 

INTRODUCTION

The theory of Love Jihad is a conspiracy theory propounded by radical Hindus. The cornerstone of this theory is, that Muslim men target the Hindu women and convert them by deception. The history of this term goes way beyond a century in 1920s and 30s even before it was coined.  Research shows that Majority of women who eloped, converted and married Muslim men were Dalits, widows and from marginal communities there is fear among Hindus that “Muslims” would take away their women. The Hindus believed that “One cannot trust a Muslim. Muslims attempt to rob and coerce our women.” But the consequences of unsubstantiated stories were known to both communities: “Much of our communal problems begins with rumors. In the contemporary times also the people believe that Muslim men are taught how to entrap Hindu girls and trick them into marrying them. The girl is converted into a child-bearing device after marriage, forced into the sexual slavery or human trafficking. Some even believe that these Muslim boys are being funded by international terrorist organizations to practice love jihad. 

Recently, in November 2020, the Uttar Pradesh government brought a new ordinance called “Prohibition of Unlawful Religious Conversion” also known as the ‘Love Jihad’ law. Madhya Pradesh Government also approved an anti conversion bill similar to that of Uttar Pradesh in the month of December and many more other BJP ruled states like Haryana and Karnataka are on the way to formulate similar laws The legislation prohibits individuals from using “misrepresentation, force, undue influence, manipulation, allurement, deceptive means or marriage” to convert anyone. An affected party or a relative can file a complaint. The recommended sentence is a minimum term of incarceration of one year, which can be increased to five years. The penalty is up to 10 years in cases involving a minor, woman, or person belonging to scheduled castes or scheduled tribes.

State’s perspective

There has been a long history of religious conversion controversy in our country, there are currently eight states imposing some form of anti-conversion law, beginning in 1967 with Odisha, followed by Madhya Pradesh, Arunachal Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand and Uttarakhand. In general, all these laws attempt to stop any individual from converting or trying to convert, either explicitly or otherwise, by ‘forceful’ or ‘fraudulent’ means, or by ‘enticement’ or ‘undue influence’ to another person. Regularly, instances of false, forced, or otherwise abusive marriages are cited as evidence for such laws. The government maintained that a surge in cases of forced conversions led to some horrific crimes and a public uproar, explaining the urgency behind the ordinance instead of passing a bill in the state assembly. Furthermore, the Government urged the High Court to leave it to the Executive to decide the issues relating to the validity of the marriage, as provided for in the Ordinance, and not to determine such issues in court proceedings. To support this claim, it quoted a decision by the United States Supreme Court.

The Prohibition of Unlawful Religious Conversion ordinance, 2020 is not the first case of an effort by a State to limit the expression of religious freedom in spiritual matters. In this case, two older laws are important. Orissa Freedom of Religion Act 1967, and then, Madhya Pradesh Dharma Swatantrya Adhiniyam 1968, both of these legislations mandated that the local District Magistrate must be notified by any person who wished to convert to another religion and these legislations were reaffirmed by the Supreme Court’s decision in the case of Rev. Stanislaus v State of MP, which put forth that right to forcible conversion is not included in Right to religion guaranteed by our constitution under Article 25. However, the present applicability of this judgement in the UP government’s new ordinance is still questionable as it not only criminalizes religious conversion but also declares the marriage null and void which resulted in the conversion. Adding to this, this present ordinance is also in contravention of the K S Puttaswamy vs Union of India1, and is contrary to various articles of Part III of our Constitution.

Individual’s perspective

Whether the present ordinance is constitutional or not? In order to answer that we need to analyze how deeply it violates or benefits the individuals. By introducing this law the government proved that greater good triumphs all but the question here is what indeed is the greater good here? is it public welfare? Or is it just favoritism towards the majority and homogenization of the populous. 

The law is specific to prevention of religious conversion in the garb of marriage. Marriage is an important institution in the society and our constitution guarantees this right to marry the partner of their own choice to each and every individual irrespective of caste, religion or creed but this legislation here itself is a brazen attempt to curb our liberty to choose our life partner. Even Article 16 of the Universal Declaration of Human Rights sanctions the marriage between men and women who have attained the age of majority. Indian courts have also constantly reaffirmed that citizens have a constitutional right to pick the partner of their choice and this right is not only essential but is also intrinsic in the right to privacy and right to life and liberty guaranteed under article 21 of the Indian Constitution. “When two consenting adults choose their path together and marry out of their desire; they consummate their relationship; they feel it is their goal and they have the right to do so. And it can clearly be stated that they have the right and a constitutional violation is an infringement of the said right”. These were the words of former Chief Justice of India Dipak Misra in the case of Shakti Vahini vs Union of Indiaand it was  also held that, because marriage is a fundamental right, the State or any other person/organization cannot object to such an autonomous choice of partner. Lata Singh vs State of Uttar Pradesh, 2006 the Supreme court assured that right to choose a partner of their choice is a fundamental right of two consenting adults and such union of two people cannot constitute an offence, hence right to choice is intrinsic in fundamental right of life and liberty. 

Feminist and Dalit Perspective

Women are still seen in Indian society as ‘valuable possession’ or ‘property’ of men who need to be protected at all costs, so as not to sabotage the ‘honour’ of the community. The premise of love jihad is that Hindu women are lured by Muslim men into conversion and then tortured and exploited as a means to only increase the Muslim population and by bringing in this ordinance the government is saving our women. This creates the idea that our women don’t have the capacity to think for themselves and don’t have a conscience and it is only men who can protect us by making our decisions for us. The law allows any family member or relative to bring an objection in the conversion. The UP government’s new law claims to protect her interests by curbing her right to choose. Section 5 gives a special mention to the women in terms of penalty and Section 6  of the pertinent ordinance  specifically says that if a ‘women’ converts into the religion of the man after the marriage, such a marriage will be held void. This proves that women don’t have the capacity to think for themselves, they are some chattel and have no agency. Not only is this a violation of their right to Equality, Right to privacy and Right to Life and Liberty but also insists that the community’s interest comes prior to her individual choice. The case of Indian Young Lawyers Assn. (Sabarimala Temple-5J.) vs State of Kerala, 2018 gives us an idea that all human beings have a right to be free from any bias and have equal protection of laws.

Violation of Constitutional Values

The constitution of India guarantees Freedom of religion to all its citizens under article 25 of the Indian constitution. The right to convert is basically an intrinsic part of the constitutionally protected freedom of conscience. Article 25(1) of the Constitution states: ‘Subject to the provisions of public order, morality and health and the other provisions of this Section, all persons shall have equal rights to freedom of conscience and to the right to profess, practice and spread religion freely. ‘Prohibition of unlawful religious conversion Ordinance, 2020 is not only violative of the fundamental guarantees provided by our constitution but can also be used as a tool to widen the gap between different religions and can incite violence against interfaith couples and minorities.  

This law is faulty on multiple level. Firstly, whether the ordinance is legitimate or not? To answer this we must know that by the virtue of Article 213 the Governor is authorized to issue an ordinance and there needs to be an emergency situation that needs immediate action, when the assembly is not in session. As it turns out there were only 14 cases pending and 8 cases out of the 14 did not have any legitimate claim.

Article 14 which guarantees us the Right to equality in the eyes of law, gives us the concept of Intelligible Differentia and Reasonable Nexus and for any legislation to be valid it must be effective against a challenge pursuant to Article 14, a classification had to be formed between those included and those excluded by the legislation, and that classification had to be fair and that classification had to be accomplished in order to have a relation with the object sought. This also gives us a test of ‘manifest arbitrariness’, even if the classification is true and has a connection with the object sought, if it is manifestly arbitrary, a law may be struck down. The current Ordinance and the previous laws to be struck down on the ground that many of its requirements are manifestly unconstitutional since they are unreasonable, disproportionate, irrational and without an appropriate deciding principle. For example, laws relating to fines, in particular minimum penalties, changing the presumption of evidence, concepts that have an undue effect on rights, public disclosure standards and police enquiries.

 Section 12 of the ordinance supposes the burden of proof on the ones who have converted to another religion, unlike the usual principle of criminal law in which the burden of proof falls on the prosecution so it is assumed that every religious conversion is illegal. This is not only contrary to the principle of common law but also Section 101 of the Indian Evidence Act. The ordinance is accused of being vague as it uses terms like “force”, “misrepresentation”, “fraudulent”, “allurement” which can be easily manipulated and secondly it becomes difficult to differentiate consensual conversions from forced ones. 

 Section 8 and 9 of this law puts forward that a prior permission has to be taken from the magistrate by any person who is willing to convert for any reason and for that a prior notice of 60 days has to be given to the District Magistrate by the party willing to convert and a 30 day notice has to be given by the priest performing the conversion after this the District Magistrate will perform an inquiry that the conversion so taking place is free of coercion and is voluntary. This is not only arbitrary and unconstitutional but also puts a person at the mercy of state officials and leaves him open for exploitation. As the lawsuit can be brought in by any of the family members or relatives of the parties in conversion this exposes them to threat and harm. Not to forget this also infringes their Right to Choice and Right to Privacy which is intrinsic to Right to Life and liberty

Conclusion 

This Ordinance is Unconstitutional and must be struck down. The outrageous statements and threats given by the RSS leaders and right-wing Hindutva leaders incite nothing but fear and trauma. These is a clear direction towards creating a Monolithic Nation and it declares that state may not dictate who to marry but can surely dictate who not to! . In an era when we need to look out of the box and expand the horizon of our thought, these legislations bring us right back to the pool of prejudice and animosity for other religious communities. It not only curbs our personal liberty but also taints the secular fabric of India. This only feeds the extremist Hindutva ideology of Hindu Rashtra and establishes a rule of majoritarianism and cultural homogeneity throughout society.


References

  1. WRIT PETITION (CIVIL) NO 494 OF 2012
  2. AIR 2018, SC 1601
  3. https://cjp.org.in/love-jihad-the-ordinance-and-constitutionality/
  4. https://www.article-14.com/post/uttar-pradesh-s-love-jihad-law-is-sexist-unconstitutional
  5. https://indianexpress.com/article/opinion/columns/constitution-law-modi-govt-p-chidambaram-7093190/

 

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Kaustubh Kumar
Kaustubh Kumar
10 months ago

Well Written Article but it seems plagiarized mostly, providing the information instead of analyzing what legislation was. Does not talks about the history of love jihad, how it started from Kanpur and neither puts forth what U.P. State Law Commission report of last year, saying against the rising cases. Neither it puts forth the letter sent Kerela minorities minister to Amit Shah telling how Christian girls are getting converted forcefully. Neither puts for the cases of love jihad going on in our nation. Totally biased so-called research article, the writer being a law student should remove his/her specs before analyzing or going through the situation.